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DOL updates FMLA following DOMA ruling

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The U.S. Department of Labor has issued an update of the Family and Medical Leave Act following the Supreme Court's landmark Defense of Marriage Act decision in June.

The update defines "spouse" as follows: "Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including 'common law' marriage and same-sex marriage."

"As a result," attorney Tony D. Dick of McNees Wallace & Nurick LLC wrote in a blog posting, "an eligible employee in a same-sex marriage who was married and resides in a state that recognizes same-sex marriages is entitled to up to 12 weeks of leave in a 12-month period to care for a seriously ill spouse or for activities associated with a military spouse's deployment, and up to 26 weeks of caregiver leave for military spouse who is seriously injured or ill.

"Conversely," he continued, "there is no obligation to make FMLA spousal leave available to a same-sex spouse who resides in any state that has banned or otherwise does not recognize same-sex marriage, including both Pennsylvania and Ohio. Of course, private employers in states that do not recognize same-sex marriage are free to extend equivalent FMLA spousal leave benefits to same-sex spouses on their own if they wish.

"DOL Secretary Thomas Perez has suggested further guidance in this area will be released in the coming months," he wrote. "In the meantime, if you are a covered employer operating in one of the 13 states that permits same-sex marriage, or the District of Columbia where same-sex marriage is recognized, now is the time to revise your policies, procedures and forms to conform with the DOL's updated guidance."

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